Plaintiff
GMP is a labor union that represents employees of defendant
Tecnocap's facility in Glendale, West Virginia [Doc. 1 at
1]. GMP filed this action pursuant to the Section 301 of the
Labor-Management Relations Act of 1947 (“LMRA”),
28 U.S.C. § 185, and seeks a declaratory judgment
[Id. at 1-2]. Sam Hall and Fred Berisford are former
employees of Tecnocap and GMP union members whose firings for
excessive absenteeism are at the center of this action
[Id. at 3]. On March 14, 2016, and April 17, 2016,
the GMP commenced grievance proceedings under the Collective
Bargaining Agreement (“CBA”) in connection with
the termination of Berisford and Hall, respectively
[Id.]. In both cases, Hall and Berisford were
purportedly terminated while they were off work under the
Family Medical Leave Act (“FMLA”) [Doc. 20-2 -
20-7]. Moreover, the grievances concerned termination subject
to the provision of the CBA in place between the parties
[Doc. 1 at 3].

Article
21, Section 1 of the CBA establishes notice procedures for
absences from work [Doc. 22-1 at 18]. Article 22, Section 2
of the CBA provides that the Company and the Union will abide
by the rules of the FMLA and sets out certain requirements
regarding days off of work [Id.]. Tecnocap
implemented an Attendance Control Policy (“the
Policy”), which establishes a progressive discipline
policy for absences from work [Doc. 20-1; Doc. 22-2].
Pursuant to the terms of the Policy, points are assigned
based upon different violations of the Policy; the
accumulation of 6 points results in a verbal warning, 7
points results in a written warning, 8 points results in a
three day suspension, and 9 points results in a termination
[Id.]. The Policy specifically excludes absences
covered by the FMLA [Id.]. Finally, Article 5,
Section 2 of the CBA concerns the hiring, releasing, quitting
and discharge of employees [Doc. 22-1 at 6]. That section
provides that the grievance procedure can be invoked in
situations, such as the Hall and Berisford grievances, where
an employee is discharged from employment with Tecnocap
[Id.].

The GMP
filed the Hall and Berisford grievances pursuant to Articles
27 and 28 of the CBA, which control the grievance and
arbitration procedure and process [Doc. 1 at 3; Doc. 22-1 at
19-21]. Article 27 of the CBA provides for a three-step
grievance and dispute resolution process [Doc. 22-1 at
19-21]. Article 28 of the CBA concerns arbitration and
provides that if a grievance is not settled in the three-step
grievance process grievances can be moved to arbitration
[Id. at 21]. Article 28, Section 1 states that,
“[o]nly grievances involving the interpretation or
application of express provisions of this Agreement shall be
subject to arbitration” [Id.].

GMP
alleges that it and Tecnocap proceeded through the three-step
grievance process in connection with the Berisford and Hall
grievances [Doc. 1 at 3]. The parties agree that neither the
Berisford Grievance nor the Hall Grievance was resolved or
settled through that process [Id.; Doc. 3 at 2].
Then, on or about August 26, 2016, GMP moved both grievances
to arbitration pursuant to Article 28 of the CBA [Doc. 1 at
3]. Tecnocap and the GMP mutually scheduled an arbitration
date of November 8, 2016, for the Berisford Grievance before
arbitrator Hyman Cohen [Id.; Doc. 3 at 3]. The
parties also mutually agreed upon arbitrator Jennifer Flesher
to serve as the arbitrator for the Hall Grievance, but no
date was set for the arbitration [Id. at 4;
Id.]. Then, on September 28, 2016, Tecnocap informed
the Plaintiff that it was refusing to proceed with the
arbitrations in both the Berisford and Hall grievances,
allegedly because GMP breached the time limits in the CBA for
processing the grievances and/or arbitrations [Doc. 22-3 at
2-3].

GMP now
contends that the CBA has no provision or term which permits
Tecnocap to refuse to arbitrate a grievance on this ground
[Doc. 1 at 4]. Furthermore, GMP contends that the parties
have a long history of processing grievances through Articles
27 and 28 without strict compliance to any time limits set
forth in the CBA [Id.]. Accordingly, GMP maintains
that the Berisford and Hall grievances were both properly
advanced to arbitration in accordance with the CBA, and that
Tecnocap wrongfully refuses to participate in the required
arbitrations [Id.]. GMP now seeks a declaration that
Tecnocap must arbitrate the Berisford and Hall grievances
pursuant to Article 28 of the CBA, and seeks costs incurred
in this action [Id. at 6].

Tecnocap,
for its part, contends that, “no arbitration is
permissible because the grievances were not timely appealed
by [GMP] and are therefore dead” [Doc. 20 at 1].
Further, Tecnocap contends that the issues raised by GMP have
already been resolved by the National Labor Relations Board
(“NLRB”) and the United States Department of
Labor (“DOL”) [Id.].

II.
STANDARD OF REVIEW

Fed. R.
Civ. P. 56 provides that summary judgment is appropriate
“if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” The party seeking summary
judgment bears the initial burden of showing the absence of
any genuine issues of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm'rs, 945 F.2d
716, 718 (4th Cir. 1991), cert. denied, 502 U.S.
1095 (1992) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986)); see also Bouchat v.
Baltimore Ravens Football Club, 346 F.3d 514, 519 (4th
Cir. 2003) (noting that “[r]egardless of whether he may
ultimately be responsible for proof and persuasion, the party
seeking summary judgment bears an initial burden of
demonstrating the abscence of a genuine issue of material
fact.”).

However,
as the United States Supreme Court noted in
Anderson, “Rule 56(e) itself provides that a
party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of
his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.” Id. at
256. “The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial-whether, in
other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Id. at 250; see also Charbonnages
de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)
(Summary judgment “should be granted only in those
cases where it is perfectly clear that no issue of fact is
involved and inquiry into the facts is not desirable to
clarify the application of the law.”) (citing
Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394
(4th Cir. 1950)). In reviewing the supported underlying
facts, all inferences must be viewed in the light most
favorable to the party opposing the motion. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Additionally, the party opposing
summary judgment “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Id. at 586. That is, once the movant
has met its burden to show absence of material fact, the
party opposing summary judgment must then come forward with
affidavits or other evidence demonstrating there is indeed a
genuine issue for trial. Fed.R.Civ.P. 56(c); Celotex
Corp., 477 U.S. at 323-25; Anderson, 477 U.S.
at 248. “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations
omitted).

When
faced with cross-motions for summary judgment, a district
court is not required to grant judgment as a matter of law
for one side or the other; rather, the court must evaluate
each party's motion on its own merits, taking care in
each instance to draw all reasonable inferences against the
party whose motion is under consideration. Wright,
Miller & Kane, Federal Practice and
Procedure: Civil 2d § 2720.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;III.
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.